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Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 22714-6-III
Title of Case: Don Delagrave v. Department of Employment Security
File Date: 05/10/2005
SOURCE OF APPEAL
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Appeal from Superior Court of Grant County
Docket No: 03-2-00012-1
Judgment or order under review
Date filed: 12/19/2003
Judge signing: Hon. Evan E Sperline
JUDGES
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Authored by John A. Schultheis
Concurring: Frank L. Kurtz
Dissenting: Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Darrell K. Smart
Smart Law Offices PS
501 N 2nd St
Yakima, WA 98901-2309
Counsel for Defendant(s)
Tomas S. Caballero
Attorney General of Washington
18 S Mission St 3rd Fl
Wenatchee, WA 98801-2203
Counsel for Respondent(s)
Tomas S. Caballero
Attorney General of Washington
18 S Mission St 3rd Fl
Wenatchee, WA 98801-2203
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DON DELAGRAVE, ) No. 22714-6-III
)
Appellant, )
)
v. ) Division Three
) Panel Five
EMPLOYMENT SECURITY DEPARTMENT )
OF THE STATE OF WASHINGTON, )
)
Respondent. ) PUBLISHED OPINION
)
SCHULTHEIS, J. -- Don Delagrave seeks to reduce his obligation to the
Employment Security Department (ESD) arising from overpayments it made to
him. Mr. Delagrave received overlapping benefits from ESD and the
Department of Labor and Industries (L&I) when he received a lump-sum
retroactive time loss settlement from L&I that covered the same period he
was receiving ESD benefits. He argues we should apply the 'common fund'
doctrine to require ESD to pay a share of the attorney fees he expended for
the recovery of funds on ESD's behalf from L&I. After paying his attorney,
full repayment to ESD will result in a net loss to Mr. Delagrave.
Therefore, he claims, ESD will be unjustly enriched. Because the ESD
statutes do not allow for the application of the 'common law' rule, we find
no error in the failure to apply the rule. However, we reverse and remand
for consideration of Mr. Delagrave's request for a repayment waiver.
FACTS
Mr. Delagrave injured his neck and shoulder on January 18, 2001, in
the course of his employment. He was unable to work due to his injuries
and sought disability benefits through L&I. When his claim was denied, he
hired counsel. He agreed to pay his attorney 30 percent of any retroactive
benefits collected from L&I. Mr. Delagrave also sought unemployment
compensation benefits through ESD. He began receiving unemployment
benefits effective January 26, 2002, after a required waiting period due to
his L&I status.
In June 2002, Mr. Delagrave, through counsel, succeeded in obtaining
benefits from L&I. L&I paid him $10,350.31 for retroactive time loss from
January 26, 2002 until June 5, 2002. He so informed ESD and returned some
unemployment checks to avoid overpayment from overlapping benefits. From
the $10,350.31 payment, Mr. Delagrave paid his counsel $3,105.09.
In August 2002, ESD notified Mr. Delagrave that due to his successful
L&I claim for retroactive time loss, he was overpaid by ESD by $7,922 for
the periods January 27 through June 8, 2002. ESD demanded repayment of
that amount. Mr. Delagrave appealed to an administrative law judge (ALJ).
He claimed the overpayment obligation should be reduced to require ESD to
pay a pro rata share of the $3,105.09 in attorney fees he expended that
ultimately resulted in his recovery of funds on ESD's behalf from L&I. The
ALJ made the following relevant findings of fact and conclusions of law,
and order.
FINDINGS OF FACT:
. . . .
3. Appellant does not deny that he was overpaid, or that the amount of
benefits at issue for unemployment insurance purposes is $7,922.00. He
also does not argue that the liability to repay the amount should be waived
for equitable reasons. He acknowledges he received unemployment insurance
benefits through ESD and time loss compensation through L and I for the
same weeks. Appellant argues that he should be allowed a pro rated
reduction for attorney's fees, the sum of $3,105.09.
CONCLUSIONS OF LAW:
1. The provisions of RCW 50.20.190 and WAC 192-28-105, WAC 192-28-110,
WAC 192-28-115 are applicable and will be found on the attachment.
2. Having given due consideration to each of the factors set forth in the
above-cited regulations, it is concluded that the claimant was without
fault but must remain liable for repayment of the $7,922.00 overpaid.
3. The undersigned has authority to waive the overpayment, for reasons of
equity and good conscience, or to require claimant to pay the sum in full.
The undersigned has been unable to find any legal authority which would
allow the undersigned to require the Department to 'pay' its share of the
attorney's fees. That case law cited by the appellant is not entirely
analogous to this situation, as the Department is not in a position of a
third party tortfeasor.
Now therefore it is ORDERED:
The Decision of the Employment Security Department under appeal is
AFFIRMED. The claimant is not at fault in causing the overpayment but
remains liable for the refund of regular benefits pursuant to RCW 50.20.190
in the amount of $7,922.00.
Clerk's Papers (CP) at 8-9. Mr. Delagrave appealed to the ESD
commissioner. The commissioner affirmed the ALJ's decision and adopted the
ALJ's findings of fact and conclusions of law, subject to certain
'additions, modifications, and comments.' CP at 106. Specifically, the
commissioner held:
Claimant contends, in part, that the Employment Security Department
would never have had a claim on him for the $7,922 overpayment but for the
fact he expended an attorney fee to obtain the L&I award, and seeks the
reduction either as a matter of right or on legal authority separate and
apart from the 'equity and good conscience' overpayment waiver provisions
contained in RCW 50.20.190 and WAC 192-28-115.1
While we can appreciate the general principle behind claimant's
contention (though we are perhaps as unclear as was the administrative law
judge at the efficacy of the particular formula proposed), neither an
administrative law judge nor the undersigned has the authority to waive
part or all of an overpayment for any other reason than the 'equity and
good conscience' provisions of the cited statute and regulation.
1 The record indicates that the claimant chose not to avail himself of
the aforementioned waiver provisions.
CP at 106-07.
The superior court made findings of fact and conclusions of law and
affirmed the commissioner's decision. Mr. Delagrave now appeals to this
court.
DISCUSSION
Standard/Scope of Review
This review is governed by the Administrative Procedure Act (APA),
chapter 34.05 RCW. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402,
858 P.2d 494 (1993). Under the APA, the ESD commissioner is empowered to
review the ALJ's decision. Id. at 404; RCW 50.32.080. The commissioner is
the final authority for the agency's determinations on unemployment
compensation. Tapper, 122 Wn.2d at 404. We therefore review the
commissioner's decision to the extent it modifies or replaces the ALJ's
findings relevant to the appeal. Id. We sit in the same position as the
superior court and apply the APA standards directly to the record. Id. at
402. However, the findings of fact and conclusions of law entered by the
superior court here are superfluous to our review. Durham v. Dep't of
Employment Sec., 31 Wn. App. 675, 676, 644 P.2d 154 (1982) (citing Andreas
v. Bates, 14 Wn.2d 322, 128 P.2d 300 (1942)).
We review the challenged findings of fact to determine whether they
are supported by substantial evidence. In re Farina, 94 Wn. App. 441, 449-
50, 972 P.2d 531 (1999). 'Substantial evidence is ''evidence in sufficient
quantum to persuade a fair-minded person of the truth of the declared
premises.''' Id. at 450 (quoting Heinmiller v. Dep't of Health, 127 Wn.2d
595, 607, 903 P.2d 433, 909 P.2d 1294 (1995)). Findings that are not
properly challenged are treated as verities. Tapper, 122 Wn.2d at 407.
The findings are presumed prima facie correct; the challenger bears the
burden of rebutting this presumption. RCW 34.05.570(1)(a); Safeco Ins.
Cos. v. Meyering, 102 Wn.2d 385, 391, 687 P.2d 195 (1984).
We review challenged conclusions of law de novo. Farina, 94 Wn. App.
at 450. We give ESD's construction of the statutes it has been charged to
interpret substantial deference. Safeco, 102 Wn.2d at 391. Ultimately,
however, it remains our duty to determine what the law is and, thus, we may
substitute our interpretation of the law for ESD's interpretation. Id. at
391-92; Farina, 94 Wn. App. at 450.
Benefit Overpayments
A person is disqualified from receiving unemployment compensation if
he or she is receiving or will receive industrial insurance disability
benefits. RCW 50.20.085. Generally, when one is overpaid as a result of
overlapping ESD and L&I payments he or she must repay the amount overpaid
to ESD. RCW 50.20.190(1).
Common Fund Doctrine
Mr. Delagrave argues that since ESD received a pecuniary benefit to
which it would not have been entitled absent his attorney's successful
efforts, attorney fees should be paid from the fund which his attorney
created. See, e.g., Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632, 966 P.2d
305 (1998). Under the common fund doctrine, the court may award attorney
fees out of a common fund to a litigant who has maintained a successful
suit for the preservation, protection, or increase of the common fund for
the benefit of the litigant and others. Id. at 426-27; Grein v. Cavano, 61
Wn.2d 498, 505-06, 379 P.2d 209 (1963). Under this doctrine, a court may
obligate an insurer to pay a pro rata share of attorney fees when the
insured's action against a third party generates a recovery for both the
insured and the insurer. Mahler, 135 Wn.2d at 436; Winters v. State Farm
Mut. Auto. Ins. Co., 144 Wn.2d 869, 877, 31 P.3d 1164, 63 P.3d 764 (2001).
There is no express provision in the statute that allows ESD to
forgive an amount attributable to attorney fees on an overpayment. When
the legislature does not act to create such a provision, we may not read
one into the statute even if we believe the omission is unintentional.
State ex rel. Ewing v. Reeves, 15 Wn.2d 75, 85, 129 P.2d 805 (1942); Dep't
of Labor & Indus. v. Cook, 44 Wn.2d 671, 677, 269 P.2d 962 (1954). RCW
50.32.160 provides for payment of attorney fees and costs out of the
unemployment compensation administration fund only if a commissioner's
decision is reversed. A provision for attorney fees for recovery of
overpayment is notably absent from this provision as well as from the
overpayment provisions of the statutes. See RCW 50.20.085, .190. If the
legislature had intended attorney fees to be available in overlapping
benefits scenarios like the one here, the logical place to include such a
provision would be within these three statutes. Mr. Delagrave correctly
notes that there is a provision for fees upon recovery from third parties
in the L&I statute (RCW 51.24.060(1)). But that only underscores this
point.
Moreover, Washington follows the American rule--attorney fees are not
recoverable unless provided for otherwise in contract, statute, or
recognized equitable principles. Rettkowski v. Dep't of Ecology, 128 Wn.2d
508, 514, 910 P.2d 462 (1996). Although Mr. Delagrave correctly notes that
the common fund rule is a common law rule of equity, it is susceptible to
modification by statute. 'If the merits of the litigation fall within a
statutory scheme which prohibits the award of attorney fees, or allows such
an award under narrow circumstances, a party cannot enlarge those
circumstances by reference to the common fund doctrine or other equitable
powers of the trial court.' Leischner v. Alldridge, 114 Wn.2d 753, 757,
790 P.2d 1234 (1990) (citing Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 U.S. 714, 719, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967)). RCW
50.32.160 provides for attorney fees under narrow circumstances. The
statute may not be enlarged under the doctrine.
Waiver of Overpayment
RCW 50.20.190(2) relevantly provides: 'The commissioner may waive an
overpayment if the commissioner finds that the overpayment was not the
result of fraud, misrepresentation, willful nondisclosure, or fault
attributable to the individual and that the recovery thereof would be
against equity and good conscience.'
ESD has published a regulation interpreting this statute:
(2) . . . It will be against equity and good conscience to deny
waiver when repayment of the overpayment would deprive the individual of
income required for necessary living expenses unless there are unusual
circumstances which would militate against waiver.
. . . .
(5) If average monthly expenses equal or exceed average monthly
income and there are no substantial liquid assets available, waiver of the
overpayment will be considered. The presence of unusual circumstances may
justify waiver on other than a financial basis when not to waive would be
unconscionable.
WAC 192-28-115.
ESD asserts that Mr. Delagrave must be precluded from arguing that the
commissioner should have considered a waiver of the overpayment because he
did not specifically couch his challenge to the overpayment order as one
for a waiver for reasons that repayment would offend 'equity and good
conscience' under RCW 50.20.190.
As noted, the commissioner did not make his own findings of fact or
conclusions of law; instead he adopted the ALJ's findings and conclusions
except to the extent they were supplemented, modified, or otherwise
commented upon in his decision. The commissioner held that Mr. Delagrave
sought reduction of the overpayment owed to ESD 'either as a matter of
right or on legal authority separate and apart from the 'equity and good
conscience' overpayment waiver provisions contained in RCW 50.20.190 and
WAC 192-28-115.' CP at 106-07. In a footnote the commissioner observed,
'The record indicates that the claimant chose not to avail himself of the
aforementioned waiver provisions.' CP at 107 n.1. The ALJ found that Mr.
Delagrave failed to assert that 'the liability to repay the amount should
be waived for equitable reasons.' CP at 9. It is unclear whether this
particular finding was effectively supplanted by the commissioner's
decision.
RAP 10.3 requires an appellant to assign error to the findings of fact
he challenges. Mr. Delagrave did not assign error to any findings of fact.
The commissioner did not convey his remarks in the form of findings or
identify which of the ALJ's findings he added to, modified, or commented
on. Thus, complying with the rule under these circumstances would have
been awkward. We construe the rules of appellate procedure liberally to
promote justice and facilitate the decision of cases on the merits. RAP
1.2(a); State v. Olson, 126 Wn.2d 315, 318-19, 893 P.2d 629 (1995). 'In a
case where the nature of the appeal is clear and the relevant issues are
argued in the body of the brief and citations are supplied so that the
court is not greatly inconvenienced and the respondent is not prejudiced,
there is no compelling reason for the appellate court not to exercise its
discretion to consider the merits of the case or issue.' Olson, 126 Wn.2d
at 323. Here, the issues are sufficiently argued and briefed and ESD is
not prejudiced. ESD does not object to Mr. Delagrave's failure to strictly
comply with RAP 10.3.1 There is no inconvenience to this court and no
other compelling reason for this court not to address the merits of this
issue. Accordingly, we will review the waiver issue.
Both the ALJ and the commissioner apparently found that Mr. Delagrave
failed to seek a waiver of the overpayment by asserting that the
overpayment was not his fault and ESD's recovery would be against equity
and good conscience under RCW 50.20.190 and/or WAC 192-28-115. See Tapper,
122 Wn.2d at 406 ('When findings of fact are not explicitly delineated, or
where those findings are buried or hidden within conclusions of law, it is
within the prerogative of an appellate court to exercise its own authority
in determining what facts have actually been found below'). This finding
of fact is not supported by substantial evidence. Mr. Delagrave's
argument, supra, is imbued with and grounded in equity. Further, when the
ALJ asked him the nature of his challenge at his hearing, Mr. Delagrave
specifically advised it was equitable. CP at 49. There could be no
mistake that he sought a waiver of at least a portion of the overpayment
for equitable reasons. The commissioner incorrectly found to the contrary.
The purpose of unemployment compensation is to reduce involuntary
unemployment and ease the suffering caused thereby. RCW 50.01.010. To
achieve this purpose, the Employment Security Act must be liberally
construed in favor of the unemployed worker. Id. When the legislature
mandates liberal construction in favor of the worker, we should not
narrowly interpret provisions to the worker's disadvantage when the
statutory language does not suggest that such a narrow interpretation was
intended. Lightle v. Dep't of Labor & Indus., 68 Wn.2d 507, 413 P.2d 814
(1966); Shoreline Cmty. Coll. Dist. No. 7 v. Employment Sec. Dep't, 120
Wn.2d 394, 406, 842 P.2d 938 (1992). Mr. Delagrave made a colorable
argument for a waiver under the statute. Even though Mr. Delagrave did not
expressly identify RCW 50.20.190 as the basis for a reduction of the
overpayment, he adequately identified the nature of his request to such an
extent that the commissioner should have ruled on it under the statute.
Restriction on Waiver
In her second conclusion of law, the ALJ specifically noted that she
had 'given due consideration to each of the factors set forth in the above-
cited regulations.' CP at 9. The regulations to which she refers are most
probably the regulations set forth in her first conclusion of law: WAC 192-
28-105 (notice of overpayment), WAC 192-28-110 (finding of fault for
overpayment), and WAC 192-28-115 (waiver in equity and good conscience).
Even though the ALJ found that Mr. Delagrave did not seek a waiver for
equitable reasons, based on her conclusion that she gave 'due
consideration' to the regulations--including the regulation for a waiver--
it is not entirely clear whether the ALJ actually considered a waiver but
ultimately decided against granting one. The fact that the commissioner's
decision does not address specific findings of fact or conclusions of law
adds to the confusion; it is not clear whether the commissioner's decision
added to, modified, or commented upon this conclusion.
However, the commissioner ultimately denied Mr. Delagrave's request
for reduction because 'neither an administrative law judge nor the
undersigned has the authority to waive part or all of an overpayment for
any other reason than the 'equity and good conscience' provisions of the
cited statute and regulation.' CP at 107. It is the commissioner's
decision that we ultimately review. Tapper, 122 Wn.2d at 406.
We will uphold an agency's interpretation of a regulation if 'it
reflects a plausible construction of the language of the statute and is not
contrary to the legislative intent.' Seatoma Convalescent Ctr. v. Dep't of
Soc. & Health Servs., 82 Wn. App. 495, 518, 919 P.2d 602 (1996). If the
agency's interpretation of the law conflicts with an applicable statute,
the statute controls. Safeway, Inc. v. Dep't of Revenue, 96 Wn. App. 156,
160, 978 P.2d 559 (1999). We must ensure that the agency applies and
interprets its regulations consistently with the enabling statute. Ortega
v. Employment Sec. Dep't, 90 Wn. App. 617, 622, 953 P.2d 827, review
granted and later withdrawn, 136 Wn.2d 1028 (1998).
The equity and good conscience statute does not limit the
circumstances under which the commissioner may find that a waiver is
warranted. RCW 50.20.190(2) provides that the commissioner 'may' waive
recovery if it would be 'against equity and good conscience.' Here, the
commissioner determined that Mr. Delagrave was not at fault. The
regulation interpreting the statute provides certain circumstances when ESD
'will' grant a waiver: 'when it is found that the individual was without
fault in the overpayment and when it is determined that to require
repayment would be against equity and good conscience.' WAC 192-28-115(2).
The regulation goes on to provide, 'It will be against equity and good
conscience to deny waiver when repayment of the overpayment would deprive
the individual of income required for necessary living expenses unless
there are unusual circumstances which would militate against waiver.' Id.
Further, '{t}he presence of unusual circumstances may justify waiver on
other than a financial basis when not to waive would be unconscionable.'
WAC 192-28-115(5).
To the extent that the commissioner ruled that a waiver for equity and
good conscience is limited to those circumstances expressly identified
under the regulations, namely, WAC 192-28-115(2) and (5), it was an error
of law. Such a conception would make WAC 192-28-115(2) and (5)
inconsistent with the statutory language. 'An agency may not promulgate a
rule that amends or changes a legislative enactment.' Edelman v. State ex
rel. Pub. Disclosure Comm'n, 152 Wn.2d 584, 591, 99 P.3d 386 (2004) (citing
State ex rel. Evergreen Freedom Found. v. Wash. Educ. Ass'n, 140 Wn.2d 615,
634, 999 P.2d 602 (2000)). Under such a ruling, the provisions of the
regulation would limit the effect of RCW 50.20.190 by limiting the
circumstances under which ESD would allow a waiver when there is no such
limitation in the statute. This would exceed ESD's rule making authority.
Edelman, 152 Wn.2d at 591-92.2
When a term is undefined by the statute, it should be given its
ordinary meaning. State ex rel. Graham v. Northshore Sch. Dist. No. 417,
99 Wn.2d 232, 244, 662 P.2d 38 (1983). In Washington jurisprudence, the
term equity and good conscience is broadly used in many different contexts.3
We often resort to dictionaries to ascertain the common meaning of
statutory terms. Id.; Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 399,
725 P.2d 1008 (1986). In Black's Law Dictionary 560 (7th ed. 1999) equity
is defined as '{f}airness; impartiality; evenhanded dealing . . . The body
of principles constituting what is fair and right.' Conscience means
'{t}he moral sense of right or wrong . . . In law, the moral rule that
requires justice and honest dealings between people.' Black's, supra, at
299. It is clear that equity and good conscience means, quite simply,
fairness. See Quinlivan v. Sullivan, 916 F.2d 524, 527 (9th Cir. 1990).
RCW 50.20.190 instructs the commissioner to determine whether, as a
matter of fairness, ESD ought to waive repayment. The commissioner must so
determine that under these facts on remand.
Attorney Fees
Because we reverse the commissioner's ruling, we direct that Mr.
Delagrave's attorney fees and costs be awarded and payable out of the
unemployment compensation fund pursuant to RCW 50.32.160. Scully v. Dep't
of Employment Sec., 42 Wn. App. 596, 605, 712 P.2d 870 (1986) (citing
Ancheta v. Daly, 77 Wn.2d 255, 265-67, 461 P.2d 531 (1969); Vergeyle v.
Dep't of Employment Sec., 28 Wn. App. 399, 404-05, 623 P.2d 736 (1981)),
overruled on other grounds by Davis v. Dep't of Employment Sec., 108 Wn.2d
272, 737 P.2d 1262 (1987).
CONCLUSION
The commissioner correctly ruled that Mr. Delagrave was not entitled
to application of the common fund rule as a matter of law. However, the
commissioner's finding that Mr. Delagrave did not seek a waiver on the
basis of equity is not supported by substantial evidence. The commissioner
erred by failing to consider Mr. Delagrave's request for a waiver.
Further, to the extent that the commissioner ruled that a waiver for equity
and good conscience is limited to those circumstances expressly identified
under WAC 192-28-115 it was an error of law. Equity and good conscience
means fairness.
The decision of the superior court affirming the ESD commissioner is
reversed. We remand the matter to the commissioner for consideration of
the facts and circumstances of this case to determine whether, in fairness,
Mr. Delagrave should be granted a partial waiver of the overpayment.
Mr. Delagrave's attorney fees on the appellate level will be granted
subject to his compliance with RAP 18.1(d) (affidavit of fees and expenses
to be filed within 10 days of this decision).
After the ESD commissioner has filed a new decision, the matter should
be sent to the superior court for determination of fees for the
administrative and superior court levels.
Schultheis, J.
I CONCUR:
Kurtz, J.
1 In its brief ESD cited cases for the proposition that unchallenged
factual findings are verities on appeal. Resp't's Br. at 5 (citing Tapper,
122 Wn.2d at 407; Dep't of Labor & Indus. v. Allen, 100 Wn. App. 526, 530,
997 P.2d 977 (2000)). Three pages later, ESD noted, 'In this case, Mr.
Delagrave chose not to raise the equity and good conscience overpayment
waiver provisions contained in RCW 50.20.190.' Resp't's Br. at 8. But ESD
did not assert that Mr. Delagrave failed to properly challenge the
findings. It only argued that 'the Commissioner justifiably declined to
waive Mr. Delagrave's overpayment because the record below is devoid of any
facts that would support such a waiver.' Resp't's Br. at 8.
2 See also Quinlivan v. Sullivan, 916 F.2d 524, 527 (9th Cir. 1990)
(holding when Congress has directed the Social Security Administration to
waive overpayments if claimant is not at fault and recovery would be
against the purpose of the statutory scheme or would be against equity and
good conscience (42 U.S.C. sec. 404(b) (1988)) and the Social Security
Administration limited the term equity and good conscience to three
specific situations (20 C.F.R. sec. 404.509(a) (1990)), 'the phrase
'against equity and good conscience' cannot be limited to the three narrow
definitions' in the regulations because the regulations do not comport with
the ordinary meaning of the statute; instead, 'courts must apply cautiously
the equity and good conscience standard to the circumstances of each case'
according to the ordinary meaning of the language; by using the term equity
and good conscience Congress intended a broad concept of fairness on a case-
by-case basis); but see also 70B Am. Jur. 2d Social Security and Medicare
sec. 1880 (2000) (noting that the Quinlivan holding is limited to the Ninth
Circuit).
3 See, e.g., RCW 51.12.102 (waiver of overpayment by L&I to maritime
workers due to overlap of federal benefits); RCW 51.16.155 (compromise in
amount of employer L&I premium arrearages); RCW 51.32.220 (waiver of
overpayment to disabled persons under L&I for overlapping federal
benefits); RCW 51.32.240 (waiver of overpayment of temporary disability
benefits under L&I resulting from order rejecting benefit claim); CR 19(b)
(when joinder of party is not feasible, trial court must determine whether
action should proceed or be dismissed); Hensen v. Peter, 95 Wash. 628, 637,
164 P. 512 (1917) (noting that the equitable tolling rule is, among other
things, 'fortified by that sound public policy which sets its face against
putting a premium upon unrighteous and vexatious litigation commenced and
prosecuted by a party for the ulterior purpose of obtaining by indirection
an advantage which in equity and good conscience he is not entitled to
enjoy'); Family Med. Bldg., Inc. v. Dep't of Soc. & Health Servs., 104
Wn.2d 105, 112, 702 P.2d 459 (1985) (defining unjust enrichment as 'money
or property {that} has been placed in one person's possession such that in
equity and good conscience he should not retain it'); State ex rel. Davis &
Co. v. Superior Court, 95 Wash. 258, 163 P. 765 (1917) (holding when
temporary injunction against soliciting plaintiff's customers and
permanently injuring its business was dissolved and defendants are all
insolvent and appellant may lose fruits of litigation pending appeal,
Supreme Court, in aid of its appellate jurisdiction, has power to provide
such relief as equity and good conscience requires, and will maintain
status quo by issuing order of supersedeas, continuing injunction pendente
lite or until further order of court); Scymanski v. Dufault, 80 Wn.2d 77,
88-89, 491 P.2d 1050 (1971) (quoting Seventh Elect Church v. First Seattle
Dexter Horton Nat'l Bank, 162 Wash. 437, 440, 299 P. 359 (1931)) (a
constructive trust is an equitable remedy that ''compel{s} restoration,
where one through actual fraud, abuse of confidence reposed and accepted,
or through other questionable means, gains something for himself which, in
equity and good conscience, he should not be permitted to hold'')).
Notably, the Washington Supreme Court used the term equity and good
conscience in the context of the subrogation and the common fund doctrine.
Mahler v. Szucs, 135 Wn.2d 398, 411, 957 P.2d 632, 966 P.2d 305 (1998)
('{The} ultimate responsibility for a wrong or loss {should be imposed} on
the party who, in equity and good conscience, ought to bear it').
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